McGahn’s testimony to special counsel Robert S. Mueller III provided the basis for the report’s conclusions on some of Trump’s worst obstruction of justice efforts, and Democrats hope he can shed more light on them. A major confrontation looks all but inevitable.
So the White House is justifying its maximal resistance with a broadened set of claims. These are set forth in a newly released letter that White House lawyer Emmet Flood sent to the Justice Department, complaining bitterly about Mueller’s investigation.
Because the Mueller report disclosed his conclusion that he could not conclusively determine that Trump hadn’t committed criminal obstruction of justice, the letter argues, the investigation is hopelessly tainted.
What’s more, it argues, Trump fully cooperated with that tainted investigation. But now that it’s over, he retains the right to exercise executive privilege to prevent his advisers from testifying to Congress — that is, to resist all efforts to further flesh out Mueller’s conclusions.
The argument is ludicrous but revealing. It shows in a roundabout way that Trump’s real position is that he should be beyond the reach of accountability entirely.
The new White House argument
Flood’s letter takes issue with the Mueller report’s declaration that he could not reach the judgment that Trump didn’t commit obstruction of justice. Mueller said if he could have reached that judgment, he would have, adding: “While this report does not conclude that the President committed a crime, it also does not exonerate him.”
Flood argues that this violated basic prosecutorial tenets, because prosecutors are either supposed to bring charges or decline to do so. If they decline, that’s supposed to be the end of the matter. By saying Trump is not exonerated, Mueller strayed beyond prosecutorial boundaries, into the “political.”
But importantly, Flood’s letter doesn’t address why Mueller stated that he couldn’t exonerate Trump.
As you’ll recall, Mueller clearly stated that his team accepted the Office of Legal Counsel’s opinion declaring that a sitting president cannot be indicted. Thus, they didn’t explicitly state Trump had committed crimes, because — without an indictment and a trial — Trump would not have been able to defend himself.
Mueller also laid out extensive evidence of criminal obstruction. But, because Mueller did not think he had the jurisdiction to indict — which constrained him from declaring outright that Trump committed crimes — Mueller declined to render that judgment, which he felt required him to also reveal that this didn’t mean Trump hadn’t committed crimes.
By arguing that Mueller should not have even revealed that, without addressing why Mueller did so, Flood is creating an absurdity: Mueller could not say Trump committed crimes, because that would have been unfair to him, but Mueller also could not say Trump hasn’t been cleared or reveal the evidence of what he did do.
This construction effectively places Trump beyond accountability. If Trump can’t be indicted, the only mechanism for accountability is Congress — yet according to Flood, Congress should not have been informed as to what Mueller learned about Trump’s misconduct.
“The Flood letter is an extraordinary misreading of the role of a special counsel as Mueller understood it,” Mark Rozell, a professor of government who has written on presidential secrecy and accountability, told me. “Because Mueller chose to follow OLC guidance, he was constrained in the conclusions he could draw. He therefore carefully documented evidence which would allow the legislative branch to take action.”
“Flood’s argument, if accepted, effectively puts the president outside the reach of the law and undermines the whole system of democratic accountability,” Rozell continued.
In fairness, one could argue Mueller didn’t have to follow the OLC opinion and could have indicted if he thought it warranted.
But the White House can’t really amplify this argument, because it would tacitly acknowledge that Mueller did amass extensive evidence that could have provided the basis for indicting.
What’s more, Attorney General William P. Barr himself has said Mueller could not indict. During his Wednesday hearing, Barr said Mueller should have declared whether Trump committed criminal acts and that, if so, an indictment would have to wait until after Trump left office.
Mueller did not make that declaration either way out of an abundance of fairness. Now the White House is exploiting that in bad faith to, in effect, declare that Mueller should not have left open other avenues to accountability.
Trump is above accountability
All this points to Trump’s actual position, which is that he is above accountability entirely. Trump has said the administration will defy “all” subpoenas. The White House letter declares that Trump can defy congressional efforts to further flesh out Mueller’s findings on the basis of executive privilege, such as by blocking McGahn’s testimony.
Rozell tells me that while presidents can legitimately claim executive privilege to protect the secrecy of deliberations, this is “not an absolute or unconstrained power.” Rozell adds: “The privilege weakens substantially when there are allegations of wrongdoing.” Which is the case now.
Meanwhile, Barr still hasn’t said when Mueller will be permitted to testify to Congress. Needless to say, Mueller will be asked why he declined to exonerate Trump, at which point he may well communicate in some way that a good deal of evidence did indeed point to Trump’s criminality.
It is precisely this type of further fact-finding by Congress that Trump is so desperate to close down.